Trowbridge v. Fleming

• Citation: 269 S.W. 610
• Decision Date: 17 February 1925
• Docket Number: No. 24025.,24025.
• Parties: TROWBRIDGE v. FLEMING et al.
• Court: United States State Supreme Court of Missouri

269 S.W. 610

TROWBRIDGE v. FLEMING et al.

No. 24025.

Supreme Court of Missouri, in Banc.

February 17, 1925.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

Action by Jesse R. Trowbridge against Fred W. Fleming and others, receivers of the Kansas City Railways Company. From judgment for plaintiff, defendants appeal. Affirmed, on condition of remittitur.

Charles N. Sadler and Mont T. Prewitt, both of Kansas City, for appellants.

Elon Levis and Atwood, Wickersham, Hill & Popham, all of Kansas City, for respondent.

LINDSAY, C.

The plaintiff was a passenger upon a street car operated by the defendants, as receivers, which became derailed, collided with a trolley pole, and turned over, whereby the plaintiff was injured. He brought this suit, asking for damages in the sum of $50,000, and had a verdict for $35,000. Plaintiff alleged that "said derailment and disaster were caused, permitted, and brought about by the negligence and carelessness of defendants, and that as a direct result of said negligence and carelessness he was injured." The petition then in great detail set forth the injuries sustained by the plaintiff to his person. The answer was a general denial, but the essential defense was that the plaintiff's injuries were the result of a mere accident, for which defendants were not responsible under the law.

The primary issue arises upon the first assignment of error, which is directed to the refusal of the trial court to sustain defendant's demurrer offered at the close of plaintiff's case, and at the close of the whole case. The car upon which the plaintiff was a passenger, at the time he was injured, was of the type spoken of as "a one man car," that is, one man operated it, performing the duties of both motorman and conductor. This car at the time was proceeding northward upon Main street in Kansas City, upon a down grade. There was a failure to control its speed, and at the intersection of Twenty-Seventh and Main street it left the track, and as a result was virtually wrecked. The contentions of the defendants upon this issue as to the facts may be summarized: That the car and its brake appliances were of a type and standard approved and in general use in the cities of the United States and Canada; that the brake appliances had been recently inspected and found to be in first class condition; that it had been working properly on the day of the accident up to the time of this accident; that failure of the air brake appliance to respond upon this occasion was caused by the pin in the live lever of the brake, either breaking, or coming out, rendering it useless; that this was an occurrence not reasonably to have been foreseen or anticipated in the exercise of the highest degree of care required by defendants. Thereupon it is insisted that the presumption of negligence, arising out of the fact that the car was derailed, has been destroyed by the undisputed evidence, and that there were no facts upon which the jury could predicate a finding as of negligence on the part of defendants. A consideration of the evidence is necessary.

On the evening of December 12, 1920, the plaintiff, who lived at Dodson, was on his way with two companions to attend a show in Kansas City. They took passage upon the car in question at Sixty-Third street and Broadway. The plaintiff took a seat near the center, and on the left hand or west side of the car, which proceeded in a northerly direction to Forty-Third and Main, and thence on Main street. The streets designated by numbers extend east and west. The car in going north ward and approaching Thirty-First street was on an up grade. At a point between Thirty-First street and Thirtieth street—about 100 feet south of Thirtieth street—is the summit, and from that point northward there is a considerable down grade, extending northward down Main street to Twenty-Seventh street, and beyond. The car made a stop at Thirty-First street to take on and let off passengers. There were from 30 to 35 passengers on the car, and some of them were standing in the aisle at the time the car started on the down grade.

The car in question was known as the "Burney Safety" car. It was a light weight car, weighing about 15,800 pounds. It was operated by one man, who performed all of the duties required in its operation, and also all the duties of a conductor. His place was at the front end on the left side, and the current was applied or shut off by the moving of a lever, which was above the controller box, and spoken of as the "controller." The car was equipped with an air brake, and there was also a hand brake, but the hand brake is not a wholly separate appliance from the air brake. The brake proper, which acts directly upon the wheels, is the same for application of the air, as for hand power. The door of the car was opened and closed by operating the same lever with which the air brake was operated. The appliances for opening the air brake and for opening and closing the door were combined in an interlocking pneumatic valve, whereby when the door is open the brakes must be applied, and the brake cannot be released until the door is closed. The testimony was that in the use of these cars dirt or other substance occasionally got into or interfered with the door control, whereby the door would not close entirely, or would kick open. A witness for defendants introduced as an expert in the knowledge of the construction and operation of cars of this type testified that a failure of the door to close, or stay closed by less than two inches, was regarded as a minor derangement, ordinarily correcting itself, but a failure to close or stay closed of more than two inches was, as he termed it, "a major derangement." The same witness also testified that by reason of the relation of the hand brake appliance to the air brake appliance there were circumstances under which, when the air brake did not work, the hand brake was also "perfectly useless." This, the witness said, was not always so, but would depend on why the air brake did not work. The hand brake was not an independent emergency brake, of a kind which would work regardless of the working of the air brake. An essential part of the brake appliance was a pin in what is termed the "live lever." Without this, neither the air brake nor the hand brake could be operated. Defendants' testimony was that when the car was examined on the next morning after the occurrence under review, which happened at 7 o'clock in the evening, this pin in the live lever was missing. It was not found, although some search was made for it along the place where the car had run down the grade. The defendants introduced testimony to the effect that the braking appliances on the car in question were of the type or standard in use on cars of this kind in many cities of the United States, and that on these ears, as on box cars, the brakes coming in contact with the wheels which are operated pneumatically are also the brakes operated by hand. The defendants' testimony tended to show that the car in question was in the shops eight days before the accident, and the braking apparatus was in order, and that the car was inspected the night before, or early on the morning of the day of the accident, that then the brake was in good condition. The testimony of a witness for defendants who had operated this car, on that day, up to about 3 o'clock in the afternoon, was that it worked smoothly during that time. After that time it was operated by another employee, the witness Ferguson, who was in charge of it at the time of its derailment. Ferguson was about 24 years old. In January, 1920, he went to work for the defendants as conductor an two-man cars, and. worked about three months, and quit. In September he again went to work, at first as a conductor; afterward was "broken in" as a motorman. About one month before the occurrence in question he was authorized, or "O. K'd," as a motorman for the one-man type of car, and after that operated cars of this type, not regularly, but as occasion required. On this occasion Ferguson's car had, been held at Sixty-Third street for about an hour, by a blocking of the line, before starting on the down trip. He testified on cross-examination that on the trip from Sixty-Third 'street to Thirty-First street, he had trouble several times in getting the door to close. The defendants introduced testimony that this did not affect the air brake. As has been heretofore stated this car was stopped at Thirty-First street, which is near the summit of the up grade coming from the south, and between Thirty-First street and Thirtieth street, going north, the track begins to run down grade. Defendants' witness Johnson, a motorman of four years' experience, who had operated this car and other cars of that type, and down the grade on Main street from Thirtieth street northward, testified that the instructions were, and it was the rule of a careful motorman, to try the air upon his car when starting down a hill; that they were instructed to go down the Main street hill, and other hills slowly; that they were instructed to go down the Main street hill at nor faster than six miles an hour; that 10 miles an hour was too fast, and not the customary speed at that place. Ferguson, the operator of the car, at the time in question also testified that the instructions were to try the brakes upon starting down a long grade, also testified on cross-examination:

"I did not try my brakes till the car began gaining quite a bit of speed, as we generally let the car coast a ways after it gets over the incline of the hill.

"Q. You say you let it gain quite a bit of speed before you tried your brakes? A. Well, not quite a bit of speed. I let it coast down that incline from the top of the hill."

He was also asked as to the air pressure. "Q. So you had not then recently before this accident looked at your air indicator there? A. No, sir.

"Q. How do you know you...